Citation Nr: 0117910
Decision Date: 07/09/01 Archive Date: 07/16/01
DOCKET NO. 00-00 149 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manchester,
New Hampshire
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
H. Roberts, Counsel
INTRODUCTION
The veteran served on active duty from July 1942 to October
1945. The veteran died on July [redacted], 1999. The appellant is
the surviving spouse of the veteran.
This appeal arises before the Board of Veterans' Appeals
(Board) from a September 1999 rating decision of the
Manchester, New Hampshire, Regional Office (RO) of the
Department of Veterans Affairs (VA), which denied the issue
on appeal.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of
the appellant's claim has been developed and the appellant
has been notified of the evidence necessary to substantiate
her claim.
2. The veteran's service-connected post-traumatic stress
disorder (PTSD) contributed to the coronary artery disease,
which was the cause of his death.
CONCLUSION OF LAW
The criteria for entitlement to service connection for the
cause of the veteran's death are met. 38 U.S.C.A. §§ 1110,
1153 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.310,
3.312 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board finds that the appellant has not alleged
that there are any relevant records that may be obtained
which have not already been associated with the claims
folder. The appellant has been informed of the evidence
necessary to substantiate the claim on appeal in the
statement of the case and the supplemental statements of the
case. The Board accordingly finds that the duty to assist
the appellant has been satisfied.
The appellant contends that service-connected disability was
a principal or contributory cause of the veteran's death and
that service connection for the cause of the veteran's death
is warranted. The appellant specifically contends that the
veteran's post-traumatic stress disorder contributed to the
coronary artery disease, which was among the listed causes of
his death.
The death of a veteran will be considered as having been due
to a service-connected disability when the evidence
establishes that such disability was either the principal or
a contributory cause of death. The issue involved will be
determined by exercise of sound judgment, without recourse to
speculation, after a careful analysis has been made of all
the facts and circumstances surrounding the death of the
veteran, including, particularly, autopsy reports. 38 C.F.R.
§ 3.312(a) (2000).
The service-connected disability will be considered as the
principal (primary) cause of death when such disability,
singly or jointly with some other condition, was the
immediate or underlying cause of death or was etiologically
related thereto. 38 C.F.R. § 3.312(b) (2000).
Contributory cause of death is inherently one not related to
the principal cause. In determining whether the service-
connected disability contributed to death, it must be shown
that it contributed substantially or materially; that it
combined to cause death; that it aided or lent assistance to
the production of death. It is not sufficient to show that
it casually shared in producing death, but rather it must be
shown that there was a causal connection. 38 C.F.R.
§ 3.312(c)(1) (2000).
Generally, minor service-connected disabilities, particularly
those of a static nature or not materially affecting a vital
organ, would not be held to have contributed to death
primarily due to unrelated disability. In the same category
there would be included service-connected disease or injuries
of any evaluation (even though evaluated as 100 percent
disabling) but of a quiescent or static nature involving
muscular or skeletal functions and not materially affecting
other vital body functions. 38 C.F.R. § 3.312(c)(2) (2000).
Service-connected diseases or injuries involving active
processes affecting vital organs should receive careful
consideration as a contributory cause of death, the primary
cause being unrelated, from the viewpoint of whether there
were resulting debilitating effects and general impairment of
health to an extent that would render the person materially
less capable of resisting the effects of other disease or
injury primarily causing death. Where the service-connected
condition affects vital organs as distinguished from muscular
or skeletal functions and is evaluated as 100 percent
disabling, debilitation may be assumed. 38 C.F.R.
§ 3.312(c)(3) (2000).
There are primary causes of death which by their very nature
are so overwhelming that eventual death can be anticipated
irrespective of coexisting conditions, but, even in such
cases, there is for consideration whether there may be a
reasonable basis for holding that a service-connected
condition was of such severity as to have a material
influence in accelerating death. In this situation, however,
it would not generally be reasonable to hold that a service-
connected condition accelerated death unless such condition
affected a vital organ and was of itself of a progressive or
debilitating nature. 38 C.F.R. § 3.312(c)(4) (2000).
The evidence shows that the veteran died on July [redacted], 1999.
The death certificate lists the causes of death as myocardial
infarction, coronary artery disease, and diabetes mellitus.
At the time of his death, the veteran had established
entitlement to service connection for post-traumatic stress
disorder, evaluated as 70 percent disabling; for residuals of
frostbite of the hands to include arthritis, evaluated as 20
percent disabling; for varicose veins of the left leg,
evaluated as 10 percent disabling; and for hemorrhoids,
evaluated as 10 percent disabling. The veteran had also
established entitlement to total disability rating for
compensation purposes based on individual unemployability by
reason of service-connected disabilities.
Service connection may be established for a disease or injury
incurred in or aggravated by service. 38 U.S.C.A. § 1110
(West 1991); 38 C.F.R. § 3.303, 3.304 (2000). Disability
which is proximately due to or the result of a disease or
injury incurred in or aggravated by service will also be
service-connected. 38 C.F.R. § 3.310 (2000). Service
connection may also be established for a chronic disease
manifested to a compensable degree within a presumptive
period following separation from service. 38 C.F.R.
§§ 3.307, 3.309 (2000). Cardiovascular-renal disease
(including hypertension) and diabetes mellitus are a chronic
diseases with a presumptive period of one year. 38 C.F.R.
§§ 3.307, 3.309 (2000).
Furthermore, a preexisting injury or disease will be
considered to have been aggravated by active military, naval,
or air service, where there is an increase in disability
during such service, unless there is a specific finding that
the increase in disability is due to the natural progress of
the disease. 38 C.F.R. § 3.306 (2000); 38 U.S.C.A. § 1153
(West 2001).
The United States Court of Appeals for Veterans Claims has
held that when aggravation of a veteran's nonservice-
connected condition is proximately due to or the result of a
service-connected disability, service connection shall be
established and the veteran shall be compensated for the
degree of disability (but only that degree) over and above
the degree of disability existing prior to that aggravation.
Allen v. Brown, 7 Vet. App. 439, 448 (1995).
The evidence includes a December 1999 letter from Steven S.
Levine, M.D., in which he states that he had treated the
veteran "for many, many years." The physician relates that
the veteran suffered his adult life with post-traumatic
stress disorder related to his time in the armed forces and
the physician believed that significant disability was
secondary to that condition. The veteran continued to
display behavior related to post-traumatic stress disorder up
to his last hospitalization. Just prior to that he had been
admitted to a nursing home and the covering physician
documented that he continued to suffer from post-traumatic
stress disorder. The physician stated that although the
cause of his eminent death was related to his severe
vasculopathy, coronary disease, and congestive failure, that
fact by no means precluded that he suffered from post-
traumatic stress disorder at the time of his death. The
physician opined that, "Certainly, all the above condition
would be exacerbated by [the veteran's] PTSD."
The RO obtained an opinion from a VA physician in April 2000.
That physician noted that the relationship between PTSD and
coronary artery disease was controversial. However, the
physician pointed out that the veteran had many risk factors
for heart disease, and concluded that it was highly unlikely
that his PTSD played a "significant" role in the
development or progression of the atherosclerotic coronary
artery disease, which lead to the veteran's death.
In October 2000, Dr. Levine, related that he was sure that
the veteran's stress and related symptoms lead to some
percentage of his cardiovascular disease and his eventual
demise. The physician cited two medical journal articles in
support of this conclusion. The physician acknowledged that
the veteran had other risk factors for coronary disease, but
concluded that he was "in complete comfort" saying that
some percentage of the veteran's cardiovascular condition and
his demise were related to PTSD.
The opinions of the VA and private physician are in apparent
conflict. While VA does not have a "treating physician
rule" that would automatically give greater weight to the
opinions of a treating physician, White v. Principi, 243 F.3d
1378 (Fed. Cir. 2001), it is significant that Dr. Levine had
an opportunity to observe the veteran's symptoms and the
impact of PTSD on the fatal heart disease. Dr. Levine was in
a position to observe that the veteran exhibited symptoms of
PTSD throughout the latter part of his life. Dr. Levine also
cited medical literature in support of his conclusions. The
VA physician did not provide a basis for the conclusion that
PTSD played no significant role in the veteran's fatal heart
disease. For these reasons, the Board finds that Dr.
Levine's opinions carry more probative weight than the
opinion of the VA physician.
Dr. Levine's opinion is to the effect that the veteran's
nonservice-connected coronary artery disease, which is listed
on the death certificate as the cause of his death, was
exacerbated during his lifetime by his service-connected
post-traumatic stress disorder. Therefore, pursuant to the
Court's holding in Allen, service connection could properly
be established for that degree of aggravation (but only that
degree) of the nonservice-connected coronary artery disease
by the service-connected post-traumatic stress disorder.
Thus, the portion of the fatal coronary artery disease which
was due to aggravation could be considered a service-
connected disability. Where a service-connected disability
is a principal cause of the veteran's death, service
connection can be established for the cause of the veteran's
death. In the alternative Dr. Levine's opinions must be read
as saying that PTSD was a contributory cause of death, in
that it contributed to the severity of the fatal heart
disease.
Accordingly, the Board finds that the criteria for
entitlement to service connection for the cause of the
veteran's death are met, and entitlement to service
connection for the cause of the veteran's death is granted.
38 U.S.C.A. §§ 1110, 1153 (West 1991); 38 C.F.R. §§ 3.303,
3.304, 3.306, 3.310, 3.312 (2000).
ORDER
Entitlement to service connection for the cause of the
veteran's death is granted.
Mark D. Hindin
Member, Board of Veterans' Appeals